Recent unrest has thrust the doctrine of qualified immunity into the spotlight.  Many of those who oppose law enforcement frequently misrepresent the nature, extent, and intent of this limited immunity.  Doing so fosters the “us versus them” mentality and abrogation advocates suggest the immunity is an example of “rules for thee not for me.”  “After all,” they argue, “the average person on the street does not get any immunity from suit, why should law enforcement officers?”  Whether by accident or design, opponents of the immunity falsely claim the doctrine insulates officers from police misconduct claims and the financial consequences of violating the constitutional rights of the people they are responsible for policing.  A movement is afoot to strip officers of this very limited immunity under the guise of protecting the public and permitting those victims of police misconduct to recover from their oppressors.  Nothing could be further from the truth.

The doctrine of qualified immunity protects all government officials acting within the scope of their governmental duties, not just law enforcement officers.  As a threshold manner, constitutional theories of liability are available only against the government and government officials, not against private citizens.  Private citizens simply cannot sue each other for a violation of the constitution.  In order to qualify for protection under qualified immunity, a public official must first prove he was acting within the scope of the discretionary authority provided by his or her governmental position.  This applies equally to all governmental officials.  The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation.  Court’s unanimously recognize the doctrine is designed to protect routine decision-making and actions by government officials, but expressly excludes the “plainly incompetent or those who knowingly violate the law.”[i]  Qualified immunity is not carte blanche to violate the constitutional rights of others, but instead, provides a defense from personal liability for routine, good-faith decisions by government officials, including law enforcement officers.

When qualified immunity is implicated, the plaintiff must demonstrate the law allegedly violated by the officer was clearly established.  More specifically, a plaintiff must point to earlier binding case law that is materially similar to the current case or show that the conduct by the officer to be so obviously at the core of what the Constitution prohibits that the unlawfulness is readily apparent.  Stated another way, if reasonable minds can disagree, and they often do, than an officer should not be held personally liable for his or her conduct.  If an officer’s conduct is clearly prohibited, or if the conduct so clearly violates the Constitution that a specific case defining the illegal conduct is not needed, then the limited immunity does not apply, and the officer may be held personally liable. 

If, on the other hand, the conduct is not clearly unconstitutional, then the officer is entitled to immunity from personal liability.  We see this most frequently under three circumstances.  First, when different courts disagree on the law.  If judges, in the safety of their chambers and under no pressure or threat of harm, cannot agree on the parameters of the constitution in a new or novel situation, how then can an officer be expected to perfectly analyze a complex constitutional issue on the side of the road, under pressure, or, in some cases, under threat of death or great bodily harm?  Constitutional interpretations are not carved in stone but instead are fluid and evolving.  The first category of cases in which the immunity applies acknowledges this as well as the fact that police officers are not lawyers or judges.  It begs the question, why should officers’ personal assets be exposed if they fail to perfectly analyze a complex constitutional issue when the courts cannot even agree? 

Second, immunity applies in cases with unique facts that no other court has addressed, and therefore, there is no guidance that an officer’s conduct was unlawful.  If an officer acts in good faith, in a reasonable manner, and in a way no court has held is improper, why should he or she be personally liable if the conduct is later found to have violated the Constitution?  Third, the immunity applies in the application of new or novel technology.  If new technology is developed that no court has examined, and an officer uses it in good faith, why should he or she be personally exposed if it is later found to be unconstitutional?  A seminal case in this regard addressed the use of then-new thermal imaging technology to “scan” houses for increased heat signatures to locate marijuana grow operations.[ii]  Prior to the court’s decision, there was no guidance on the proper use of the new technology, and more specifically, whether a warrant was required to use it.  In determining the use required a warrant, law enforcement officers were put on notice that the failure to do so would be unconstitutional.  Qualified immunity exists to protect officers from personal liability under circumstances such as these, not to excuse, condone, or permit the wanton violation of the Constitution without ramification.

A critical fact opponents of qualified immunity never seem to acknowledge is that the immunity does not bar claims or suits against the government for violations of the constitution.  The immunity applies only to individual government officials.  In operation, it makes complete sense.  If a government official’s conduct violates the Constitution and the violation is a result of a custom, pattern, or practice of an agency, then the victim of the unconstitutional conduct is entitled to recover from the agency.  The requirement for right to be clearly established does not apply to agency liability.  Therefore, any claim that the qualified immunity doctrine prevents recourse or the recovery of damages is simply untrue.  Agencies, but not individual public officials, may be held accountable and may be required to pay damages where sovereign immunity applies if their conduct violates the constitutional rights of others.

The abrogation of qualified immunity would be catastrophic for individual law enforcement officers who dedicate themselves to policing in good faith and who make every effort to follow the law.  It would have zero impact on those officers who are “incompetent or who knowingly violate the law,” because those officers are already exposed to personal liability for their conduct.  The potential ramifications on recruiting and retention are countless.  What person in their right mind would want to take enforcement action when their reasonable, good faith conduct could result in personal sanctions for a violation of the Constitution, even in the absence of any prior decisions notifying them their conduct was unconstitutional?  The net effects of the abrogation of sovereign immunity are real, foreseeable, and catastrophic.  Should current efforts to abrogate this important protection prevail, there are dark days ahead for government officials of all types who inadvertently, unintentionally, and unknowingly violate the Constitution.

[i] Malley v. Briggs, 475 U.S. 335 (1986).

[ii] Kyllo v. United States, 533 U.S. 27 (2001)